Palmer v. Lares

United States Court of Appeals,

Fifth Circuit.

No. 93-7219.

James E. PALMER, Plaintiff-Appellant,

v.

A. LARES, et al., Defendants-Appellees.

Jan. 27, 1995.

Appeal from the United States District Court for the Southern
District of Texas.

Before REYNALDO G. GARZA, WIENER and EMILIO M. GARZA, Circuit
Judges.

REYNALDO G. GARZA, Circuit Judge:

Appellant Palmer, an inmate of the Texas Department of

Criminal Justice, filed a § 1983 suit against prison guards

alleging the use of excessive force against him. A jury trial was

held and the jury returned a verdict in favor of the defendants.

Appellant now appeals the judgment alleging that the lower court

erred in instructing the jury, erred by dismissing his Batson

motion, and erred by allowing testimony in violation of Rule 615.

For the reasons discussed below we affirm.

Procedural History

Appellant filed his original § 1983 claim pro se and in forma

pauperis on November 18, 1985. After a pretrial hearing before

Honorable Lynn Hughes, the claim was dismissed with prejudice under

28 U.S.C. § 1915(d). Appellant appealed to the Fifth Circuit, and

on August 13, 1990, this Court issued a judgment reversing the

district court and remanding the case for further proceedings.

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Palmer v. Lares, 912 F.2d 1466 (5th Cir.1990). After remand, the

district court ordered Appellant to respond. Receiving no response

the district court dismissed the case for want of prosecution on

December 14, 1990. Appellant again appealed, and this Court issued

a judgment on May 28, 1991, vacating the district court's decision

and remanding the case. Palmer v. Lares, 934 F.2d 1261 (5th

Cir.1991).

On second remand Appellant's case was heard by Magistrate

Judge John Froeschner. The parties consented to a jury trial

before the magistrate judge. The jury returned a verdict for the

defendants and judgment was entered on March 11, 1993. Appellant

now brings his third appeal before this Court.

Facts

Appellant contends that three guards came to his cell,

handcuffed him, and began a destructive search of his cell. When

he questioned the guards' actions they responded by beating him

repeatedly. He was then taken to a nurse, examined, and returned

to his cell. Upon his return, Appellant was again beaten by the

guards. Appellant pleaded with the other inmates to call for

assistance. Appellant was examined a second time; the nurse noted

bleeding from the ear and a possible skull fracture. Appellant was

subsequently flown to a hospital. At the hospital no fracture was

detected and the bleeding from the ear was attributed to an ear

infection. The only injuries noted by the hospital were a hematoma

on the left side of Appellant's face and tenderness.

Discussion

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I. Jury Instructions

Appellant contends that the jury instructions were improper.

The magistrate judge instructed the jury concerning Appellant's

excessive force claim under the Shillingford1 standard. The

instruction provided:

In order to prove that the defendants used excessive force in
violation of the Eighth Amendment, the plaintiff must prove by
a preponderance of the evidence that the force used by the
defendants was grossly disproportionate to the need for the
use of force under the circumstances, that the force was
inspired by malice rather than careless or unwise excess of
zeal, and that the force used proximately caused a severe
injury to the plaintiff.

Appellant objected arguing that the Hudson2 standard should be

used; instead of "severe injury" the court should have used the

term "harm."

Trial judges are normally accorded "wide latitude in

fashioning jury instructions." Bender v. Brumley, 1 F.3d 271, 276

(5th Cir.1993). The trial court, however, must properly instruct

the jury on the applicable law and guide the jury to an intelligent

understanding of the issues in the case. Id. This Court will

reverse the trial court only if the charge, taken as a whole,

leaves this Court with "substantial and ineradicable doubt whether

the jury has been properly guided in its deliberations." Id.

Furthermore, this Court will not reverse if it finds that the

1
Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981)
(abrogated by Valencia v. Wiggins, 981 F.2d 1440 (5th Cir.),
cert. denied, --- U.S. ----, 113 S.Ct. 2998, 125 L.Ed.2d 691
(1993)).
2
Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d
156 (1992).

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challenged instruction could not have affected the outcome of the

case. Id.

In Shillingford v. Holmes this Court, in 1981, required a

showing that the state's action caused "severe injuries, was

grossly disproportionate to the need for action under the

circumstances and was inspired by malice rather than merely

careless or unwise excess of zeal so that it amounted to an abuse

of official power that shocks the conscience." Shillingford, 634

F.2d at 265. Appellant contends that the standard applied by the

lower court should have been reduced to the mere harm standard

enunciated in the United States Supreme Court case of Hudson, 503

U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (holding that in order to

establish a violation of the cruel and unusual punishment clause

based on a claim of excessive use of force, a prisoner who shows

unnecessary and wanton infliction of pain is not required to show

serious injury; a showing of harm is sufficient). The issue

before us is not one of first impression.

This Court held in Valencia that reasonableness of the

state's action must be measured against the law as it existed at

the time of the conduct in question. Valencia v. Wiggins, 981 F.2d

1440, 1449 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2998,

125 L.Ed.2d 691 (1993). "The force which Valencia alleges was

applied to him excessively was used in 1987, at which time

Shillingford's substantive due process standard was the clearly

established law in this circuit for excessive force claims ..."

Id. The conduct in question—the alleged excessive use of

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force—occurred on September 23, 1985. Shillingford was decided in

1981 and was the established law as of September 23, 1985.3

Therefore, the lower court did not err in instructing the jury as

to the proper standard of harm.

In examining the jury instructions this Court has become

aware of an error in the charge of which Appellant did not

complain. Appellant argued that the lower court merely used the

wrong standard of harm in instructing the jury. As discussed above

the lower court did not err in this respect; however, the lower

court improperly incorporated the inquiry of qualified immunity in

its jury charge. Evaluating a defendant's right to a qualified

immunity defense necessitates a two-step inquiry. See King v.

Chide, 974 F.2d 653, 656-57 (5th Cir.1992). First, one must

determine whether the plaintiff has alleged a violation of an

established constitutional right. Siegert v. Gilley, 500 U.S. 226,

231, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Second, if a

constitutional right has been violated, one must determine if the

defendant's conduct was objectively reasonable. Spann v. Rainey,

987 F.2d 1110, 1114 (5th Cir.1993).

Under the first step, the officer's conduct is measured by

"currently applicable constitutional standards." Rankin v.

Klevenhagen, 5 F.3d 103, 105 (5th Cir.1993). Under the second

step, if there is a constitutional violation, the officer is

3
Appellant argues that Hudson was the law at the time of the
occurrence because the Hudson case arose out of the year 1983.
This argument is without merit. Hudson was not decided until
1992 and therefore was not established law until this time.

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nevertheless entitled to qualified immunity if the officer's

conduct was objectively reasonable as measured by reference to

clearly established law. Anderson v. Creighton, 483 U.S. 635, 638,

107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987); Rankin, 5 F.3d at

105. The magistrate judge failed to instruct the jury on the first

prong of the inquiry. The magistrate judge should have first

instructed the jury to determine whether Appellant had established

a violation of his Eighth Amendment rights to be secure from

excessive force. After this instruction, the court should have

instructed the jury as to the law in effect at the time of the

incident. The court omitted the first prong and instructed the

jury to evaluate the reasonableness of the defendants' conduct

under the law in effect at the time of the incident.

The issue becomes whether this error requires reversal.

There appears to be no case law on this issue. Although we can not

see how this could "have affected the outcome of the case,"4 we

leave determination of this issue for another day. Appellant

failed to raise this issue at trial or on appeal, therefore, it is

not properly before this Court. See Carmon v. Lubrizol Corp., 17

F.3d 791 (5th Cir.1994) (holding that while this Court liberally

construes briefs in determining issues presented for review, issues

not raised at all are waived); Picco v. Global Marine Drilling

Co., 900 F.2d 846 (5th Cir.1990) (holding that an argument not

presented to the district court nor raised in appellate briefs nor

raised prior to oral argument was not properly preserved for

4
Bender, 1 F.3d at 276.

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appeal).

II. Batson Motion

Appellant contends that the lower court erred by allowing

counsel for the defendants to use peremptory strikes in a

discriminatory manner in contravention to Batson v. Kentucky, 476

U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). During jury

selection the magistrate judge asked Mrs. Paul, a member of the

venire, whether she and her husband were employed. She responded

that she was a housewife and her husband was retired. Mrs. Paul

was the only juror belonging to the same minority class as

Appellant—African-American. Defense counsel struck Mrs. Paul and

Appellant objected with a Batson motion. The magistrate judge

overruled the objection on the grounds that he felt that Mrs. Paul

was hostile and did not want to be in the courtroom.

"We pay great deference to the trial judge's decision

regarding a Batson motion." United States v. Hinojosa, 958 F.2d

624, 632 (5th Cir.1992). "The trial judge's decision rests upon a

credibility determination, and, thus, we interfere with that

decision only if it is clearly erroneous or an abuse of

discretion." Id. A judge's decision to allow the exclusion of a

juror because of a given reason, for example, insufficient

education, is reviewed under the abuse of discretion standard. Id.

Whether the juror actually falls within the given reason, whether

the venireman's education is insufficient, is a factual

determination reviewed under the clearly erroneous standard. Id.

Evaluation of a Batson motion is a three step process. First,

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the complaining party must make a prima facie showing that opposing

counsel has exercised peremptory strikes in a discriminatory

manner. Second, after this showing is made, the striking party

must articulate a race neutral explanation of the decision.

Finally, the trial court must determine whether the complaining

party has successfully proven purposeful discrimination. Batson,

476 U.S. at 96-98, 106 S.Ct. at 1722-23.

Appellant argues that defendants did not offer a plausible

racially neutral explanation of their use of this peremptory

strike.5 Defendants explained that they removed Mrs. Paul because

"she wouldn't understand a fist fight," she did not show respect to

the court as evidenced by not standing while addressing the court,

she was hostile in response to the court's questions, she appeared

as if she did not want to participate in the trial, and she and her

husband were unemployed. Appellant responded to this argument by

asserting that at least one other venireperson did not stand to

address the court, that Mrs. Paul was not hostile, and that it was

unfair to characterize her as unemployed. The magistrate judge

overruled Appellant's objection, finding that Mrs. Paul was hostile

and that she did not want to be in the courtroom.

This Court has held that intuitive assumptions about a

potential juror's interest and attitude can be acceptable as race

neutral explanations for a peremptory challenge. United States v.

Roberts, 913 F.2d 211, 214 (5th Cir.1990), cert. denied, 500 U.S.

5
It is not contested that Appellant made a prima facie
showing of discrimination.

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955, 111 S.Ct. 2264, 114 L.Ed.2d 716 (1991). The reasons the

magistrate judge gave for overruling the Batson objection are

reviewed under the abuse of discretion standard. Because attitude

and demeanor have repeatedly been found to be valid reasons, the

magistrate judge did not abuse his discretion. Whether Mrs. Paul

did not actually want to participate in the trial and was hostile

is reviewed under the clearly erroneous standard.6 Appellant has

failed to show that this finding was clearly erroneous. Therefore,

we find no error requiring reversal.

III. Rule 615

Appellant contends that the lower court erred by permitting

the jury to consider the testimony of Dr. Brockman and Nurse

McCelvy, who had conversed with each other after Nurse McCelvy had

testified, but before Dr. Brockman's testimony was heard.

Appellant argues that the conversation between the two witnesses

was in violation of rule 615 and resulted in tailored testimony.

Rule 615 provides that the court may order witnesses excluded so

6
The magistrate judge articulated his reasons for denying
the motion:

... I felt as though she—the feeling that I got from
the answers she gave me was like I have got better
things to do than sit in this courtroom. I have got
better things to do than to listen to some judge ask me
about my life. I felt the hostility that Mr. Shortes
had pointed out. I would say that just so you will
know the basis of my ruling. That's the only basis of
my ruling ... But the hostility to the answers to the
Court, I sensed it as well. That to me is her
demeanor. And I think the Defendants can make a strike
based on their feelings of a prospective juror. And
for that reason and that reason alone, I'm going to
sustain—I'm not going to find a Batson violation.

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that they cannot hear testimony of other witnesses.7 The purpose

of the rule is to prevent witnesses from tailoring their testimony

to that of another witness's testimony. See United States v.

Wylie, 919 F.2d 969, 976 (5th Cir.1990). A district court's

decision to admit testimony in violation of Rule 615 is reversed

only if the violation resulted in sufficient prejudice and is an

abuse of discretion. Id. In determining whether an abuse of

discretion occurred, this Court focuses on whether the witness's

conversation concerned substantive aspects of the trial and whether

the court allowed opposing counsel an opportunity to explore fully

the conversation. Id.

Following Nurse McCelvy's testimony, the magistrate judge

cautioned her not to discuss her testimony with any other

witnesses. Nurse McCelvy, at defense counsel's direction,

telephoned Dr. Brockman before Dr. Brockman was called to the

stand. This conversation was revealed in Dr. Brockman's

cross-examination. After Dr. Brockman completed his testimony, the

magistrate judge examined Dr. Brockman to determine whether his

conversation with Nurse McCelvy affected his testimony and

concluded that it did not.

Appellant contends that Dr. Brockman's testimony was altered

and tailored by his conversation with Nurse McCelvy. Although

Appellant refers to parts of Dr. Brockman's testimony that were

allegedly affected, Appellant does not explain how they were

7
We must assume that the lower court or the parties invoked
The Rule.

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affected. The defendants argue that the only reason Nurse McCelvy

called Dr. Brockman was to establish that certain notations were in

fact made by another physician and not an assistant as Dr. Brockman

thought. Nurse McCelvy's testimony was not discussed.

Appellant contends that the tailored testimony is evident when

one compares Dr. Brockman's testimony at trial to his testimony in

an earlier deposition. The excerpt to which Appellant refers

involves an attempt to impeach Dr. Brockman based on his answers in

a deposition. However, Appellant does not point out what portion

of or how Dr. Brockman's testimony was allegedly altered. The

minor discrepancies between the deposition and the

cross-examination involve words such as "probably" versus "might"

and single word answers versus the same answer with elaboration.

For example, during his deposition Dr. Brockman was asked if an

earache, vertigo, or dizziness would be aggravated under certain

conditions. Dr. Brockman responded that it probably would. At

trial Dr. Brockman was asked the same question and he responded

that it might but that he was not one hundred percent sure.

We find no indication that the lower court abused its

discretion by permitting the jury to consider the testimony of the

witnesses. Dr. Brockman's testimony did not appear to be affected

by his conversation with Nurse McCelvy; Appellant failed to

indicate how Dr. Brockman's testimony was altered; and the lower

court gave Appellant ample opportunity to explore fully the

conversation on cross-examination. Accordingly, we affirm the

lower court.

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AFFIRMED.

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